ATTACHMENT A
Section 11A(5)
The agency or Minister must give the person access to the document if it is conditionally exempt at a
particular time unless (in the circumstances) access to the document at that time would, on balance, be
contrary to the public interest.

Note 1:  Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:  A conditionally exempt document is an exempt document if access to the document would, on balance,
be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:  Section 11B deals with when it is contrary to the public interest to give a person access to the
document.

Section 11B
Public interest exemptions—factors

Scope
(1)  This section applies for the purposes of working out whether access to a conditionally exempt
document would, on balance, be contrary to the public interest under subsection 11A(5).

(2)  This section does not limit subsection 11A(5).

Factors favouring access
(3)  Factors favouring access to the document in the public interest include whether access to the
document would do any of the following:
(a)  promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)  inform debate on a matter of public importance;
(c)  promote effective oversight of public expenditure;
(d)  allow a person to access his or her own personal information.

Irrelevant factors
(4)  The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(a)  access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
(aa) access to the document could result in embarrassment to the Government of Norfolk
Island or cause a loss of confidence in the Government of Norfolk Island;
(b)  access to the document could result in any person misinterpreting or misunderstanding the
document;
(c)  the author of the document was (or is) of high seniority in the agency to which the request
for access to the document was made;
(d)  access to the document could result in confusion or unnecessary debate.

Guidelines
(5)  In working out whether access to the document would, on balance, be contrary to the public
interest, an agency or Minister must have regard to any guidelines issued by the Information
Commissioner for the purposes of this subsection under section 93A.

ATTACHMENT A
Section 47E
Public interest conditional exemptions—certain operations of agencies

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
(a)  prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or
audits by an agency;
(b)  prejudice the attainment of the objects of particular tests, examinations or audits conducted
or to be conducted by an agency;
(c)  have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth, by Norfolk Island or by an agency;
(d)  have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.

Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the
public interest (see section 11A).

FOI fact sheet 12
Freedom of information – Your review rights
July 2012
If you disagree with the decision of an Australian Government agency or minister under the Freedom of
Information Act 1982 (the FOI Act), you can ask for the decision to be reviewed. You may want to seek
review if you sought certain documents and were not given full access, if someone is to be granted access
to information that is about you, if the agency has informed you that it will impose a charge for processing
your request or if your application to have your personal information amended was not accepted. There
are two ways you can ask for review of a decision: internal review by the agency, and external review by the
Australian Information Commissioner.
Internal review
or would not address your concerns (for example,
If an agency makes an FOI decision that you
if you were not consulted about a document
disagree with, you can ask the agency to review
that contains your personal information before it
its decision. The review will be carried out by a
was released). For more information see FOI fact
different agency officer, usually someone at a more
sheet 13 – Freedom of information: How to make a
senior level. There is no charge for internal review.
complaint.
You must apply within 30 days of being notified
Do I have to go through the agency’s internal
of the decision, unless the agency extended the
review process first?
application time. You should contact the agency if
you wish to seek an extension. The agency must
No. You may apply directly to the Information
make a review decision within 30 days. If it does
Commissioner. However, going through the
not do so, its original decision is considered to be
agency’s internal review process gives the agency
affirmed.
the opportunity to reconsider its initial decision,
and your needs may be met more quickly without
Internal review is not available if a minister or
undergoing an external review process.
the chief officer of the agency made the decision
personally.
Do I have to pay?
No. The Information Commissioner’s review is free.
Review by the Information Commissioner
The Information Commissioner is an independent
How do I apply?
office holder who can review the decisions of
You must apply in writing and you can lodge your
agencies and ministers under the FOI Act.
application in one of the following ways:
Is a review the same as a complaint?
online:  www.oaic.gov.au
No. The Information Commissioner also investigates
post:
GPO Box 2999, Canberra ACT 2601
complaints about agency actions under the FOI
fax:
+61 2 9284 9666
Act. However, if you are complaining that an
email:  xxxxxxxxx@xxxx.xxx.xx
agency decision is wrong, it will be treated as an
in person:  Level 8, Piccadilly Tower
application for a review. Your matter will be treated

133 Castlereagh Street
as a complaint when a review would not be practical

Sydney NSW
FOI fact sheet 12 – Freedom of information: Your review rights
1

An application form is available on the website at
Can I withdraw my application?
www.oaic.gov.au. Your application should include
Yes. An application can be withdrawn at any time
a copy of the notice of the decision that you
before the Information Commissioner makes a
are objecting to (if one was provided), and your
decision.
contact details. You should also set out why you are
objecting to the decision.
What happens in the review process?
Can I get help in completing the application?
The review process is designed to be as informal
as possible. The Information Commissioner may
Yes. The Information Commissioner’s staff are
contact you or any of the other parties to clarify
available to help you with your application if
matters and seek more information. The Information
anything is unclear.
Commissioner may also ask the agency or minister
to provide reasons for their decision if the reasons
When do I have to apply?
given were inadequate.
If you are objecting to a decision to refuse access
Most reviews will be made on the basis of the
to documents, impose a charge or refuse to amend
submissions and papers provided by the parties.
a document, you must apply to the Information
Sometimes the Information Commissioner may
Commissioner within 60 days of being given notice
decide to hold a hearing if one of the parties
of the decision. If you are objecting to a decision
applies. Parties may participate in a hearing by
to grant access to another person, you must apply
telephone. If confidential matters are raised, the
within 30 days of being notified of that decision.
hearing may be held partly or wholly in private.
You can ask the Information Commissioner for an
extension of time to apply, and this may be granted
Will there be other parties to the review?
if the Information Commissioner considers it is
There may be. The Information Commissioner
reasonable in the circumstances.
can join other parties who are affected by the
application. For example, if you are objecting to
Who will conduct the review?
someone else being granted access to information
Staff of the Information Commissioner will conduct
that concerns you, that person may be joined in the
the review. Only the Information Commissioner, the
review.
FOI Commissioner or the Privacy Commissioner can
make a decision at the end of the review.
Can someone else represent me?
Yes, including a lawyer. However, the Information
Does the Information Commissioner have to
Commissioner prefers the process to be as informal
review my matter?
and cost-effective as possible and does not
No. The Information Commissioner may decide
encourage legal representation.
not to review an application that is frivolous,
misconceived or lacking in substance, or if you fail to
Will the Information Commissioner look at all
cooperate with the process or cannot be contacted
documents, including ones that are claimed to be
after reasonable attempts. You cannot appeal
exempt?
against that decision.
Yes. The Information Commissioner’s review is a
Alternatively the Information Commissioner may
fresh decision, so all the relevant material must be
decide that the Administrative Appeals Tribunal
examined, including documents that the agency or
(AAT) would be better placed to review the matter,
minister has declined to release. Developments that
and if so, will advise you of the procedure for
have occurred since the original decision may also
applying to the AAT. This will not be common.
be considered.
FOI fact sheet 12 – Freedom of information: Your review rights

What powers does the Information Commissioner
What can I do if I disagree with the Information
have?
Commissioner’s review decision?
While the review process is designed to be informal,
You can appeal to the AAT. The Information
the Information Commissioner has formal powers to
Commissioner will not be a party to those
require anyone to produce information or documents,  proceedings. There is a fee for lodging an AAT
to compel anyone to attend to answer questions and
application, although there are exemptions for
to take an oath or affirmation that their answers will
health care and pension concession card holders,
be true.
and the AAT can waive the fee on financial hardship
grounds. For further information see
An agency or minister can also be ordered to
www.aat.gov.au/FormsAndFees/Fees.htm.
undertake further searches for documents.
What decisions can the Information Commissioner
FOI applications made before 1 November
make?
2010
After reviewing a decision, the Information
The Information Commissioner can only review an
Commissioner must do one of three things:
agency’s or minister’s FOI decision if you made your
FOI request on or after 1 November 2010. If you
• set the decision aside and make a fresh decision
made your FOI request before 1 November, even if
• affirm the decision, or
the decision was made after that date, the review
• vary the decision.
process is different.
The Information Commissioner will give reasons for
You must first ask the agency for internal review of
the decision.
the decision. You may then appeal to the AAT if you
are not satisfied with the decision.
Will the decision be made public?
The information provided in this fact sheet is of a
Yes. The Information Commissioner will publish
general nature. It is not a substitute for legal advice.
decisions on the website. Exempt material (that is,
material that is not released) will not be included.
Nor will the name of the review applicant, unless
For further information
that person requests otherwise or there is a special
telephone: 1300 363 992
reason to publish it.
email: xxxxxxxxx@xxxx.xxx.xx
write: GPO Box 2999, Canberra ACT 2601
or visit our website at www.oaic.gov.au
FOI fact sheet 12 – Freedom of information: Your review rights

FOI Fact Sheet 13
Freedom of information – How to make a complaint
October 2010
You  may  complain  to  the  Australian  Information  Commissioner  if  you  have  concerns
about  how  an  Australian  Government  agency  handled  a  request  for  documents  under
the  Freedom  of  Information  Act  1982  (the  FOI  Act)  or  took  any  other  action  under  that
Act.  If  you  are  unhappy  with  the  agency’s  decision  about  giving  or  refusing  access  to
documents,  you  should  ask  for  the  decision  to  be  reviewed,  which  is  a  separate  process.
Disagree with an FOI decision?
If  the  Information  Commissioner  decides  to
investigate your complaint, the agency you have
If  you  disagree  with  an  agency’s  or  minister’s
complained about will be notified in writing of
decision on your request under the FOI Act, you
the  complaint.  The  Information  Commissioner
have  the  right  to  have  the  decision  reviewed.
conducts  investigations  of  complaints  in
You  can  ask  an  agency  to  review  its  decision
private.
internally.  You  also  have  the  right  to  ask  the
Information Commissioner to review an agency’s
Who can make a complaint?
or  minister’s  decision.  See  FOI  Fact  Sheet  12
Freedom  of  information  –  Your  review  rights
Any  person  can  make  a  complaint  about  the
for more information about the review process.
actions of an agency in relation to an FOI activity.
You do not need to have requested documents
If you are concerned about the way an agency
under the FOI Act.
has handled your matter, you can complain to
When should I make a complaint?
the Information Commissioner.
You  can  complain  to  the  Information
What  are  the  powers  of  the  Information
Commissioner  at  any  time.  If  your  complaint
Commissioner?
relates  to  an  FOI  request  you  can  make  the
The Information Commissioner can investigate
complaint at any stage of the process.
a  complaint  about  how  an  agency  handled
an  FOI  request,  or  other  actions  the  agency
Before  making  a  complaint  to  the  Information
took  under  the  FOI  Act.  The  Information
Commissioner,  you  should  contact  the  agency
Commissioner  cannot  investigate  a  complaint
directly  to  try  to  resolve  your  concerns.  The
about a minister.
Information  Commissioner  may  decide  not  to
investigate your complaint if you have not raised
In conducting the investigation the Information
your concerns first with the agency or you have
Commissioner has the power to:
not given the agency a reasonable opportunity
to deal with your complaint.
•  make inquiries of an agency
•  obtain information from any person
•  take  possession  of,  or  inspect,  any  relevant
documents.
FOI Fact Sheet 13 – How to make a complaint
1

How do I make a complaint?
Can  the  Information  Commissioner  decide
not to investigate my complaint?
Your  complaint  must  be  in  writing  and  must
specify the agency you are complaining about.
Yes. The Information Commissioner may decide
You  can  send  your  complaint  to  us  using
not  to  investigate,  or  may  discontinue  an
the  details  at  the  end  of  this  fact  sheet.  A
investigation, if:
complaint form is also available on our website
at www.oaic.gov.au.
•  your complaint does not concern an agency’s
action under the FOI Act
If  you  need  help  we  can  assist  you.  You  can
contact  us  on  1300  363  992  or  by  email
•  it  is  more  appropriate  for  you  to  complain
to xxxxxxxxx@xxxx.xxx.xx.
to another body (such as the agency or the
Commonwealth Ombudsman)
What  information  do  I  need  to  put  in  the
complaint?
•  it is more appropriate for you to ask for the
decision to be reviewed
To  help  the  Information  Commissioner  give
the  best  consideration  to  your  complaint,
•  the agency you complained about has dealt
please  provide  as  much  relevant  information
with your complaint, or is in the process of
as  possible.  Be  clear  about  the  issues  in  your
dealing with it
complaint  and  what  action  or  outcome  you
•  your  complaint  is  frivolous,  lacking  in
would like to see as a result.
substance or not made in good faith
Is there a fee for making a complaint?
•  you  do  not  have  sufficient  interest  in  the
No.  There  are  no  costs  involved  in  making  a
matter.
complaint to the Information Commissioner.
If the Information Commissioner decides not to
What will happen to my complaint?
investigate or discontinues an investigation, the
Commissioner will notify you and the agency of
An officer of the Information Commissioner will
the reasons for this in writing.
contact you to discuss your complaint and you
will  be  kept  informed  of  the  progress  of  your
How will my complaint be resolved?
complaint along the way.
In some cases the Information Commissioner’s
Before  deciding  whether  to  investigate  your
investigation  and  intervention  may  result
complaint  the  Information  Commissioner  may
in  the  agency  addressing  the  issues  that
make  preliminary  inquiries  of  the  agency  you
you  have  complained  about.  In  other  cases
have complained about.
the  Information  Commissioner  may  make
suggestions  or  recommendations  that  the
If  the  Information  Commissioner  decides  to
agency should implement. You and the agency
investigate  your  complaint,  the  Commissioner
will be notified in writing of the outcome of the
will write to the agency and request information
investigation.
to assist with the investigation.
FOI Fact Sheet 13 – How to make a complaint
2

If  an   agency  fails  to  take  adequate
The Information Commissioner can also transfer
and  appropriate  action  to  implement
to  the  Ombudsman  a  complaint  that  could
any
recommendations,  the
Information
more  appropriately  be  investigated  by  the
Commissioner
may
issue
a
formal
Ombudsman.  This  could  occur  where  the  FOI
implementation  notice.  This  notice  requires
complaint is only one part of a wider grievance
the  agency  to  explain  what  action  it  will  take
about an agency’s actions. It is unlikely that this
to  implement  the  recommendations.  The
will be common. You will be notified in writing if
Information  Commissioner  may  also  provide  a
your complaint is transferred.
written  report  to  the  minister  responsible  for
the  agency,  and  the  report  will  be  tabled  in
The information provided in this fact sheet is of a general
Parliament.
nature. It is not a substitute for legal advice.
Your  name  will  not  be  included  in  the  report
unless  there  is  a  special  reason  and  you  were
For further information
first consulted.
telephone: 1300 363 992
Investigation by the Ombudsman
email: xxxxxxxxx@xxxx.xxx.xx
write: GPO Box 2999, Canberra ACT 2601
The  Commonwealth  Ombudsman  can  also
or visit our website at
investigate  complaints  about  action  taken  by
www.oaic.gov.au
agencies under the FOI Act. However, if the issue
complained about either could be or has been
investigated by the Information Commissioner,
the  Ombudsman  will  consult  the  Information
Commissioner to avoid the same matter being
investigated twice. If the Ombudsman decides
not  to  investigate,  the  complaint  and  all
relevant documents must be transferred to the
Information Commissioner.
FOI Fact Sheet 13 – How to make a complaint
3

Document Outline

FOI_fact_sheet13_how_to_make_a_complaint.pdf